You as a lawyer will probably feel most out of your element during jury selection. A national survey of lawyers conducted a few years ago asked,1 “What are your most and least favorite parts of trial?” Lawyers said jury selection was the least favorite. The survey report probably is accurate in saying lawyers dislike jury selection because, among other reasons:

Group dynamics in a panel of 40 or more persons cause people to act differently than they normally do. Lawyers are not used to dealing with people in groups of more than a dozen people.

Stereotypes and statistics do not work very well when applied to small groups. The lawyer is frustrated in trying to get reliable data before trial for his/her decisions during strikes at trial.

The pressure is high. If the attorney is wrong in the jurors he/she leaves on the jury, the case may be lost before any evidence is admitted.

Very few cases get to trial now. So picking a jury is not done often, and lawyers do not have much practice at it. This section of our text is designed both for the litigator who for the first time is actually going to try a jury case, and also for the lawyer that has done it a few times and would like some new ideas and quick forms to pick up and use. So, in a few dozen pages of advice covering a broad range of jury selection topics in concise faction, we will not only instruct you about the procedural aspects of jury selection if this is your first time at voir dire, but also will give tips on jury selection and forms that will be useful to an experienced litigator.

Building the issues on which to question the jurors about their life experiences and values.

Keep notes on possible voir dire subjects as soon as the case starts. Make those notes only in one place in your Building Trial Notebooks™ trial notebook — behind tab “19. Voir Dire; Juror List.” We have provided a place (the back of form §19.3) for you to make notes of items that you may want to be aware of during voir dire. For example, if one of your witnesses knows two languages, but speaks Spanish much better than English, you may want to put a note in your trial notebook about that fact (e.g., “Jose Gonzales does not speak good English. He might need a Spanish translator”). Until you get about 60 days out from trial, only make a note of items to be considered. Until you are about 60 days out from trial, do not try to decide exactly how you will approach it in voir dire. It is not worth the time and effort to make decisions any earlier. Just jot down the items that you will want to consider when the time comes for you to compose your voir dire.

As you get about 60 days out from trial, compose your final ideas for the voir dire. Start by thinking of your theme and story. Every good trial attorney has a trial theme. The purpose of the trial theme is to grab the jury’s attention like a newspaper uses headlines to grab the readers’ attention. The theme is what makes you want to hear what Paul Harvey’s radio show called: “The rest of the story.” We mentioned this before, but it bears repeating — the theme can best be thought of in terms of: “This is a case of _________________.” Complete that sentence, and you probably have your theme. In an automobile intersection case where you are claiming excess speed of the adverse driver, it might be: “this is a case of a speeding driver who did not step on his brakes in time.” In a products case where you are claiming inadequate inspections of the product, it might be: “This is a case of a company that did not care what it sent out, just so long as it sold.” In a fire case where you are defending an insurer on the theory of arson by the insured, it might be: “This is a case of a fire that did not set itself.” In a medical malpractice case where you are defending a doctor, it might be: “This is a case of a difficult patient and a caring doctor.” Once you have your theme, you will know a target for your voir dire, a major subject on which you need to know the jurors’ attitudes and life experiences.

To take the examples we have used, if your case is the “case of a speeding driver,” you need to spend a major portion of your voir dire time finding out the jurors’ life experiences with driving a car, with speeding tickets, and with vehicle accidents. In the “case of a company that did not care,” you need to spend a major portion of your voir dire finding out the jurors’ life experiences with working for companies, with buying defective products, and with their beliefs on what companies try to do. In the fire case, you need to find out the jurors’ experiences with making claims to insurers, and the reputation the jurors think the specific insurer has. In the case of “a caring doctor,” you need to spend a major portion of your voir dire finding out the jurors’ beliefs about why doctors are in that business, and what makes a patient a difficult patient for correct diagnosis. So, determine your case theme, and you will see the major issues on which you need to focus in jury selection. You want to strike off the panel those jurors whose life experiences or belief systems will make it difficult for them to accept your theme of your case.

In contrast to the theme (short and to the point), the story is the entire framework on which your testimony and exhibits hang. Consider the entire story of your case. Again you will be lead to issues on which you need to determine the type of jurors most likely to not like your case.

Finally, consider the parties and the witnesses in the case, both yours and also the adverse party’s. Are the parties or the witnesses such that a juror might have a special reaction? For example, if you represent a corporation, you want to know what a juror’s reaction might be to corporate actions. The juror’s life experiences may cause considerable differences because of the nature of the case. That is, a juror who might be unfavorable to your company when the plaintiff’s claim is a race discrimination claim might be just the juror who would favor a defendant construction company if the plaintiff is another company suing on a building construction contract. Is your client a famous Martha Stewart sort of client, or a legal but poor immigrant in a civil rights police abuse suit? Again, these suggest issues for you to discuss with the jurors. You want to find out who is likely to not like your client or your witness.

Concentrate on deciding which types of jurors will not like your case. It will help you mentally prepare for voir dire if you concentrate on thinking of voir dire as a process of “deselecting” jurors. A jury panel has already been selected for you. You do not have the luxury of picking the jurors you want. You only have the ability to take off (“deselect”) the worst jurors. Concentrate on finding bad jurors. Jurors will make decisions based on their value systems and life experiences. Ask yourself, “What kind of life experiences or value systems will make a juror be closed to believing in our version of the case?”

Resist the temptation to stereotype jurors. Of course, there may be times when, for lack of information, you will need to rely on stereotypes as the “odds” of a particular set of life experiences, but that should only be your course if you lack information. Stereotypes and “averages” are poor crutches in making decisions regarding individuals. Let’s go back to the example of your having one key witness that speaks Spanish well, but not good English. Do not leap to the conclusion that Spanish-speaking jurors will favor the witness, and English-only jurors will be hostile to believing the witness. It may be a completely true statistic that 80% of English-speaking white Anglos will assume the worst about a Spanish-only speaking witness, but you do not know whether a specific prospective juror is a member of that 80%. You may be striking one of the 20% that would favor your witness. In like manner, it may be statistically true that only 8% of Spanish-speaking prospective jurors may be hostile to a person who has not applied the effort that they applied to learn English, but you do not know whether you are dealing with one of the 92% or one of the 8%. If you base your strikes on stereotypes rather than on specific information gained from that specific juror, you may be leaving on your jury one of the 8% who will be against your client. In summary, you must concentrate on learning about the life experiences and value systems of individual jurors, not on classifying jurors in general categories. That is why in jury “de-selection” you must ask questions which will get you information about the adverse life experiences and values held by a prospective juror.

In building your voir dire issues, whether you are on the plaintiff or defense side, you should not be coy about damages issues. Ask direct and pointed questions to identify those pre-disposed to negative attitudes toward your side of the case. If you represent the plaintiff, ask the questions about who will have a hard time awarding damages for non-tangible items, and who could not award a verdict in the amounts you will be asking for. On the defense side, ask the questions to flush out those who will give high damages. Since you have the advantage of hearing the plaintiff’s voir dire, you can probably identify some likely high damages jurors during the plaintiff’s voir dire. When it becomes your turn, concentrate on those jurors and flush out their attitudes toward damages as punishment or as compensation for emotional injury.

If you are looking for a good damages jury, you especially need to spend a great deal of time in voir dire asking jurors their feelings about specific types of damage awards, such as awards for pain and suffering, or punitive damages. That’s because damage attitudes are an emotional hot button for many jurors, which affects how they will respond to damages testimony.

Liability jurors and damages jurors are not necessarily the same. Decide whether you’re looking for a jury that will favor your side on liability or a jury that will favor your side on damages. Do not try to combine the two because you’ll get neither. You simply do not have sufficient strikes to take off both the bad liability and also the bad damages jurors.

Once you have identified the issues and topics that will be involved with jurors who are likely to vote against your client, then start to work on the specific questions and statements you will make to the jurors. I’ll discuss this further in the juror questionnaire forms and the later sections of this tabbed division 19.

Form §19.4 (discussed in §19.2) has built into it the most common items on which you will almost always want to know the juror’s attitudes. The additional items on which you will question the panel should be written on a list you can see on one page. Write the items large enough and clearly enough so that you can look at them quickly during the voir dire to refresh your memory on the points you want to cover.

During voir dire, you should have in your hands no more than:

A seating chart of the jurors with their names written in (preferably a form like §19.4);

A pad and pen to make an occasional note; and

Words or phrases that will guide you in the questions that you want to ask the jury panel.

§19.6 Your Goals in Voir Dire

There are lots of articles about jury selection, and lots of juror consultants. There are about as many varieties of “suggested goals of voir dire” as there are authors and consultants. I am going to give you four goals that most commentators agree upon, given in the order you should consider them as you build your voir dire questions. Do just these four things, and you will have accomplished more than most attorneys accomplish.

Goal #1: Identify the bad jurors for this case.

Goal #2: Get the judge to send the bad jurors home and keep the good jurors in court.

Goal #3: Get the jurors to care about your client.

Goal #4: Educate the jurors on a key point or two.

You will notice that I have not listed “persuading the jurors to change their initial opinion to one in your favor” as a goal of voir dire. Many, if not most, litigators without significant actual trial experience will list “persuasion to believe your version of the facts” as a goal. They are wrong. The prospective jurors have taken at least 20 years developing their beliefs and value systems. You are not going to get them to change in five minutes. First of all, you cannot ask anything so powerfully convincing in a question to them that they will have an instant conversion of a lifetime of experience. So, do not dilute your effectiveness in reaching the four goals above by ineffective attempts in the voir dire to change hearts and minds.

Tradition dies hard, and the tradition of trying to persuade jurors during voir dire started in the 1960s. Kalven and Zeisel2 studied juries in Chicago and concluded that jurors began making up their minds from the earliest moments of the trial, and had decided the case by the end of opening statements! Based on this research, Kalven and Zeisel argued that since jurors began making up their minds right away, lawyers should treat jury selection as an extension of the opening statement. Therefore, in the view of Kalven and Zeisel, the majority of voir dire should be devoted to advocacy. In other words, voir dire is more about arguing the case than interaction and gathering information. This viewpoint about the value of advocacy in the opening statement became the subject of many CLE programs on “how to try a case,” and a tradition was born among trial lawyers.

Unfortunately, Kalven and Zeisel did not study the attitudes of the jurors before the opening statements, so their conclusion about change being accomplished in opening statements is flawed. Nonetheless, four decades later, the Kalven and Zeisel viewpoint still prevails with lawyers. One study of voir dires found that about 40% of the lawyers’ presentations on voir dire were directed toward creating positive impressions of the attorneys themselves, their client, and their case.3

There are, however, other viewpoints that should be noted and, I believe, followed.

In the last 20 years, a plethora of skilled researchers have come to the conclusion that attempts to change existing values during voir dire are generally worthless. The first notable study in this regard is that done in 1987 by Wu and Shaffer.4 Wu and Shaffer studied the pre-existing attitudes of their subjects and the resistance of those attitudes to change when the subjects themselves were subjected to a persuasive appeal of the type that a juror would undergo in opening statement and final argument. Wu and Shaffer concluded that attitudes and biases which stem from prior experience are the most resistant to change during a persuasive appeal. Their research, now used by most jury consultants, leads to the conclusion that unless a case is entirely lopsided in one side’s favor, a juror’s life experiences and attitudes are more likely to dictate the way he/she votes than the persuasive appeals by lawyers at the start of the case. Later, research by jury consultants comes to the same conclusion: the jurors’ pre-existing attitudes and experiences prevails in the way they view the evidence over the attorney’s arguments.

Based upon the research of the last 20 years, rather than on lawyers’ traditions, the primary goal — the focus of voir dire — is obvious: you should spend your time identifying jurors’ life experiences and prejudices because that is what is going to determine the outcome of your case. Don’t mix goals in one question; you won’t get information with an indoctrinating question. Your goal in most questions is to eliminate potential problem jurors through challenges for cause or peremptory challenges. You also need help to tailor your presentation to fit the preconceived notions and life experiences of the jury. Therefore, you should spend voir dire discovering what people think and believe. This information is more likely to determine the outcome than early persuasive appeals to change what people think and believe.

However, asking the jurors only about their attitudes runs contrary to the expectations of the average potential juror. They want to know about the case (“what is this case about”), rather than only being extensively questioned in generalities about their personal preferences. Attorneys who ignore the opportunity in voir dire to educate the jury about “What is this case about?” may be viewed by the jurors as wasting their time or as a bad lawyer.

Further, failure to present any overview of your side of the case can leave your client at a disadvantage as the jurors start to develop a framework in which to place facts later received, particularly where the other party does an effective presentation on voir dire.

What is best is to give the jury an overview of the case from your perspective, and present facts to your advantage, but use the bulk of your time — at least 80% — trying to learn about the jurors. If you are talking to a juror, you are not listening to the juror. If you are advocating, you are not asking about the juror’s individual attitudes. When you get to opening statement, use your time to advocate and persuade. Voir dire is learning, not advocating. Wait for opening statement to a jury from which you have eliminated the bad jurors.

After seeing lawyers in court, and teaching lawyers for more than 30 years, I know that lawyers want to advocate their position during voir dire. Jurors do need and want some information about the case at hand. Give them information that allows them to build a correct and helpful mental framework about the case. There are two ways you give information. First, directly saying you are describing the case and the events involved. Second, in your questioning of the jurors, you can inject a few questions which seek to educate the potential jurors of your view of the evidence. This can be done in terms of prefacing a question with an assumed state of facts. If, for example, you represent a fall down victim in a retail store, you may want to ask people if they have ever slipped on a floor that was wet when they did not know it was wet. Then you follow-up by asking their view on what a store should do when the store learns that a floor is wet.

But don’t spend more than 20% of your time on educating the jury. That is the top limit.5 Spend at least 80% of your voir dire time getting information from the jurors. Do not waste precious time in voir dire doing an advocacy job at the expense of identifying the bad jurors for this case. Getting a bad juror will lose the case. Failing to do some early advocacy will not lose the case. Identifying the bad jurors is not easy. It takes time and a number of questions answered by each juror.

You do not have extra time. Almost always the judge is going to give you a time limit for voir dire. In federal court, the judge may do the entire voir dire himself, only allowing you to submit questions for consideration. In federal court, absent the most compelling public interest, the judge is going to give you an extremely limited time.

Warning:

This text is about the trial of civil cases. Criminal case law on voir dire is quite different. What you hope to accomplish in criminal cases is quite different from civil law suits, and the selection process can be significantly different. There are lots of cases about judicial limits and judicial errors in criminal cases. In contrast, case law is scant or non-existent in which an appeals court decided that voir dire in a civil case was handled improperly by a trial court. As a practical matter, in civil cases, the trial court will give you a time limit, and the judge knows there is not going to be any effective appeal to overrule him.

Thirty minutes for your voir dire is not an unusual time limit in many state courts. An hour for each side is common for the average case. Very few judges will let you just keep going in a voir dire without a time limit. Usually, the judge wants voir dire and the plaintiff’s opening statements to take only half a day, and to have the presentation of evidence commencing on the same day as voir dire. Even if the judge does not give you a time limit, there is a limit to how long you can prolong voir dire without convincing the jurors that you are a crashing bore whose questions during trial can be safely slept through.

Therefore, the four goals I am giving you are the only things you are going to have time to accomplish.

Goal #1: Identify the bad jurors for this case.

A bad juror is someone whose belief system does not fit with decisions you want the juror to make. Identifying bad jurors is not easy.

Decide on the values and beliefs you do not want a juror to have. What are the values and belief systems that run contrary to the decisions you want? Sit and think. Do not set them down in terms of demographic stereotypes (i.e., do not think in terms of “under 25, blue collar, construction workers”). Think instead of persons: without broad work experience, likely to make quick judgments about people, have used safety equipment that is expensive for businesses to install. Once you know the life experiences and attitudes you are looking for, then you can ask the right questions.

Get the jurors to do most of the talking. The only way to know if prospective jurors are good or bad jurors is to talk about themselves and their beliefs and feelings. To accomplish this goal, you need to make the prospective jurors comfortable in the strange environment of the courtroom, you need to ask open-ended questions, and then you need to stop talking and listen!

Get the jurors to give you honest answers. You cannot strike a bad juror or get a bad juror excused for cause until you have identified him/her as bad for your case. Rather than making prospective jurors feel that they should give the socially acceptable answers to your questions, or encouraging jurors to keep silent because their opinions are contrary to your cause, you need to make jurors feel open to giving honest answers.

The average new attorney stands up and says he/she is asking questions “to get 12 fair and unbiased jurors to hear this case.” That statement should never be made. It is absolutely wrong. It encourages jurors to hide any feeling or bias they have that makes them anything but neutral. What you want to know is who is against you! So it is much better to start out by saying:

Most of us have some strong feelings one way or the other on certain issues. There is nothing wrong with that. That is just a part of life, to have opinions about things. There are no right or wrong answers to the questions we are asking you. We will be honest with you and we want you to be honest with us.

I repeat: don’t ask questions about potential jurors’ “fairness” or “impartiality” in your voir dire questions, until you are pursuing a challenge for cause. Jurors always say they will be fair when they are asked in a group. You rarely get meaningful replies to “will you be fair” questions until you get to detailed questioning in chambers or at side-bar of a specific, lone juror for a challenge for cause. Save “fair and impartial” language for the judge or your last question to a specific juror in a for-cause challenge.

The first time a venireperson gives a “bad answer,” thank and praise that person for honesty and then use the answer to find out who else has the same or similar feelings. If you praise a prospective juror for honesty, you will encourage other bad jurors to identify themselves when you ask the follow-up question: “Who else agrees with Mr. Jones that… [e.g., most lawsuits are frivolous]?” If a venireperson gives a “bad answer,” that juror is someone you probably want to get rid of by a peremptory strike or by getting the juror excused for prejudice. The fear that the “bad apple” will convince other uncommitted jurors to his/her belief during a voir dire is small compared to the huge benefit of learning who are the other bad jurors, and which are the worst of the bad jurors. Jurors who favor your view, or who are uncommitted, are not going to be converted to what another prospective juror said simply because they heard him say it during voir dire. So find out “Who else agrees with Mr. Jones that…,” and flush out the bad jurors into the open.

Furthermore, the more you reinforce and praise a prospective juror who has given the bad answer, the more likely it is that this person will continue to make honest statements in open court about his/her biases, to the point where the judge has to excuse the juror for cause.

Goal #2: Get the judge to send the bad jurors home and keep the good jurors in court.

Ideally, you get most or all of the bad jurors excused by the judge for cause. Arguing or fighting with the panel member to establish a for-cause strike is not an effective method. An effective method is to lead bad members of the panel to open up, tell the truth, and declare it in language that makes the judge want to send them home.

When a juror gives an answer that could well be a challenge for cause, thank the juror for his/her honesty and then say, “[Juror’s name], is it okay with you if we visit (talk) some more about this later?” This brings temporary closure to the issue, so you can go on to other jurors. Then, whatever the pattern for challenges that the judge uses, you can come back and do your specific questioning designed to lead the bad member into a firm biased position which will cause him/her to be excused by the judge.

On the other hand, if what you find is a good juror for you, you want to ask him/her “neutralizing” questions to rehabilitate him/her so that the judge decides that he/she can remain on the panel over the other side’s challenge. We will cover more about the specific techniques you can use to get the judge to send the bad jurors home, a little later in this text.

Goal #3: Get the jurors to care about your client.

Before you can convince people, you have to have their attention and their desire to pay attention to you. If you want to win your case, you need jurors who care about your client and who are interested in your client’s problems. Whether you are on the plaintiff’s side or on the defendant’s side, jurors who care about your client will give you and your client a fair trial. Jurors who do not care will not invest themselves in your client or the case. Uncaring jurors are at best unpredictable. At worst, uncaring jurors will punish you and your client when the verdict is rendered.

Most jurors want to do the right thing for a case or a person that they care about. The key is for you to convince the jurors that your case is not frivolous or a waste of their time, and that your client is someone for whom they should care. A large corporation can be the target for care, just as much as an injured child. It is up to you to develop the feeling in the jurors, by your questions, that they should “care” about your client. (Or if they cannot care about your client, at least have them identified and stricken from the panel.)

Step one in accomplishing the goal (of getting the jurors to care about what happened to your client and about this case) is to tell the panel from the first moment that you stand up that “this is an important case.” Those five simple words — “this is an important case” — should be the first words out of your mouth in voir dire. When you speak those five words, the panel instantly becomes interested in finding out why, and interested in investing their time and attention to finding out why. Your next words should be the explanation of why it is important and to whom it is important.

The case does not need to be important to the public at large. At the least, in every case, you can explain that it is “an important case” to your client because of some element personal to the case. For a plaintiff, the always present element is the fact that it is the one and only time he/she can ask for justice. For a defendant, almost always a present element is that it is important that only proper claims be paid and excessive claims be resisted. Use your ingenuity and work in part of your theme or story in the explanation of why this case is important.

Remember that if your client is a corporation, the corporation is made up of people, and those people are usually the reason the jury will care about the corporation. So talk about why the case is an important case to the people in your corporate client. You have the task as an advocate to get jurors to quickly care about a case when they do not know your client and probably do not want to be there in the first place. Give them a reason to care about the case and your client as quickly as you can.

Goal #4: Educate the jurors on the outline of your case and a key point.

Your final goal during voir dire is to give the jurors the outline of “What is this case about?” and also to educate the jurors on a key point. The jurors need to be given a brief outline of your story, to satisfy their needs. The jury should be given a key point, from your point of view of the case, to satisfy your need to prepare them to accept that key point. At this stage in the trial, you are not trying to persuade the jurors of anything, but you should educate the jury of what that point is, so they can start to build a framework on which to assemble facts in a meaningful manner.

Educating the jurors on the outline of your cases goes hand in glove with getting the jurors to care about what happened to your client and about this case. Give the juror your theme and the outline of your story. As you do that outline, or after it, spend some time on a key point of the case. For example, in a products liability case, you may want to work into the end of your summary about the case a short explanation of how the product works, then ask questions about the experience of the jurors with that sort of product or its operation.

If you have an unfavorable fact, the voir dire is a good place to insert it so that it loses the shock effect the adverse party was hoping for. Drinking by your client is a good example. Discuss the fact that your client had four beers before the accident and then ask a question about life experiences in having some beers and then driving that same day, or a question on whether the juror thinks anyone who has four beers should be punished by being held responsible for anything that happens for the rest of the day or night. When you are forthcoming with adverse facts during voir dire, by the time the adverse fact comes into evidence during the trial, it is “old news” and not as attention-getting.

§19.7 Voir Dire Questions Not to Ask

Don’t waste time on jurors after the “last juror rule of thumb.”

With voir dire time strictly limited, it is important not to use valuable time talking to jurors who will never sit on the panel. For teaching purposes, let us assume the state involved is Texas. The rule of thumb in a state like Texas (with 12-person juries and 6 peremptory challenges per side) is to limit questions to the first 24 jurors plus 2, for a total of 26. In other words, in Texas you would go to juror number 26 and then use your time on more questions to those 26. The number of 26 is used assuming there is to be a 12-person jury; and each side is entitled to 6 peremptory strikes. That assumption is probably not valid for your state. The number of jurors and strikes varies widely by state. Most states do not use 12-person juries and 12 peremptory strikes.6 The assumption we made for number of jurors on the civil jury and the number of peremptories means that the 12-person jury will come out of the first 24 jurors. The reason we suggest going two more persons over the sum of the petit jury plus all the peremptory challenges (to 26) is to provide a cushion against the situation where suddenly the judge excuses a juror or two for an unexpected reason, and the panel from which the jurors are chosen then grows to the first 26 jurors.

If your jurisdiction has more jurors hearing the case, or a different number of peremptory challenges, adjust the “26” accordingly (i.e., smaller size jury, adjust downward; if alternative jurors chosen, adjust upward; if fewer peremptory strikes granted, adjust downward). Thus, in North Dakota with a 9-person civil jury, and four peremptories per side, and two alternate jurors to be empaneled, the number would not be “26,” but rather “21” (9 jurors plus 8 peremptory challenges for both sides combined, plus 2 alternate jurors, plus the 2-person cushion). So, in the North Dakota example, the rule of thumb would be to limit questions to the first 21 persons in the prospective juror panel.

However, if during voir dire you come to believe that:

Some of the first 24 jurors will be subject to a challenge for cause; or

The judge is going to excuse some jurors on the judge’s own motion.

Then talk to a sufficient number of jurors past the last juror rule of thumb. For example, in a jurisdiction where the last juror rule of thumb is 26, if you feel that four jurors may be subject to a challenge for cause, then talk to jurors through number 30. The exception to this is if there is an expert or other person on the prospective juror panel who can educate the panel on an important point and whose number is beyond the last juror rule of thumb. Otherwise, there is no benefit in finding out the beliefs of persons who are not going to be selected; instead, valuable voir dire time that could be used getting to know jurors will be wasted.

Suppose that you ask a general question of an entire panel and a potential strike juror is deep in the panel (e.g., number 54) and probably will not be reached, so you do not want to spend time with her. In that instance, say: “[Juror’s Name], as you can tell, the Judge has brought in more jurors than we will need. What I am saying is that we will probably not get to you in this case. However, I appreciate your raising your hand, and if we think we may reach you, I will come back to you.” You are then free to go on to another juror in the first 26 with another question, but you have not alienated the venireperson (or any other venirepersons) by not questioning that person.

Eliminate questions asking, “Is there anyone who believes…?”

A common mistake of litigators is falling into the habit of asking an entire panel questions that start out: “Is there anyone here who…?” The theory of the litigator is that people who agree will respond affirmatively, and then he/she can ask each prospective juror who responds about his/her individual experiences or attitudes involved.

The theory is wrong. Don’t ask questions with the phrase most lawyers use: “Does anyone here feel…?” That phrase sets a social group standard, making it seem like whoever answers is an exception to the social rule. Many people will not raise their hands, because they (correctly) feel that you believe anyone who does is “different” or socially abnormal. Resist the temptation of the easy way out used by inexperienced attorneys who say to the jury: “I take it from your silence…”; “Can every member of the jury panel promise me that…?” ; “Does anyone have a problem with…?”; and, “Does anyone on the panel have any feelings about…?” Those questions leave you with little real information, and do nothing to change attitudes.

On the other hand, if you make the assumption that some people feel that way, your question will be neutral and encourage an honest answer, whichever way the juror feels.

It is much better to ask an individual juror: “Mr. Jones, do you believe…?” After having received the answer of Mr. Jones, then ask: “How many people agree with Mr. Jones that…?” Then ask: “How many people do not agree with Mr. Jones, and instead believe that…?” In other words, ask an individual, then ask for agreement or disagreement. You will find that it is much more like a conversation, is much less confrontational to the panel, and will give you more complete information.

Leonard Bucklin has been elected a Fellow of the International Academy of Trial Lawyers, which attempts to identify the top 500 trial lawyers in the U.S. He served as a Director of the Academy from 1990 to 1996. He is also a member of the Million-Dollar Advocate’s Forum, which is limited to plaintiffs’ attorneys who have won million or multi-million dollar verdicts, awards, and settlements.

On the other side of the table, Mr. Bucklin has been placed in Best’s Directory of Recommended Insurance Attorneys as a result of superior defense work and reasonable fees for over 35 insurers. His legal experience spans 40 years, and has been balanced between commercial and personal work, between office practice and litigation, and between plaintiff and defense work. He is the author of Building Trial Notebooks, from which this article is excerpted.

James Attorney Marketing

About

Since 1981, James Publishing has provided practical law books that are loaded with time-saving motions and pleadings, client letters, and step-by-step procedural checklists, pattern arguments, model questions, pitfalls to avoid, and practice tips.